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applied the local rule with respect to atheists in several cases.1 But the Fourteenth amendment was not adopted until 1868, and these cases all arose prior to that time. The interference with personal liberty involved in excluding a man from the witness stand when valuable rights may depend upon his testimony is manifest. The person thus excluded is barred from all legal redress if he be the sole witness to the injury for which redress is sought. such cases he suffers the penalty of outlawry. He "may be robbed or assaulted with impunity if no one but himself or others of similar opinions be present." It would be ridiculous then to say that a person so treated was not denied the “equal protection of the laws." In such cases he is refused any protection whatever, and it is difficult to conceive a grosser violation of that clause which forbids any state to "deny to any person within its jurisdiction the equal protection of the laws." But nearly all the state constitutions contained provisions of this character long before the Fourteenth Amendment to the United States Constitution Constitution was adopted. And indeed the Fifth Amendment, although not a limitation upon the power of the states was binding upon the federal courts from the time of its adoption, which was before the close of the year 1791, and this amendment contains the same personal liberty clause as the Fourteenth, viz, that no person shall be deprived of life, liberty or property, without due process of law, although it does not contain the equal protection clause, viz, that no state shall deny to any person the equal protection of the laws.. To have applied the Fifth Amendment in the federal courts to the protection of so-called atheists when their rights were threatened by the rule excluding them as witnesses would not certainly have involved any far-fetched construction of that amendment. This is the more évident when we

(1) United States v. Cranch. 5 Cranch, C. C. 38. Decided in 1836. United States v. Kennedy, 3 McLean, 175. Decided in 1843. The Merrimac, 1 Ben. 490. Decided 1867. Wakefield v. Ross, 5 Mason 18. Decided 1827. Note State v. Washington, 42 L. R. A. 566.

read that amendment in connection with the first, which was adopted at the same time. Indeed, the first ten amendments should be studied together, as they were all proposed and adopted together, and with the one general object of protecting individual rights against the power of government. The first amendment was designed expressly to guard religious liberty, and reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." It seems strange that in the light of these constitutional provisions, disabilities, barring one from the protection of the law, should ever have been permitted in a country whose free institutions are ing of these constitutional provisions upon the right of an atheist to give evidence never seems to have been fully discussed. In one case2 the court observed "that it was not customary in modern practice to permit an inquiry into a man's peculiarity of religious belief, 'not because the inquiry might tend to disgrace him, but because it would be personal scrutiny into the state of his faith and conscience, contrary to the spirit of our institutions. N. H. Bill of Rights, arts. 4, 5; U. S. Const., First Amendment.' This would seems to be the only case in which the application of the United States Constitution, as affecting the common-law disabilities of atheists, was even suggested. The reason for this has probably been a want of consideration of the subject. The familiar rule that statutes in derogation of the common law are strictly construed, has been applied to constitutional provisions, and as the disqualification of atheists was a common-law disability, counsel may have been deterred by this rule from a full consideration of the

question in the few cases where it arose in the federal courts. It may have been It may have been assumed that the "Bill of Rights" (the first ten amendments), was not intended to affect common-law rules as to mere matters of procedure. And doubtless this is true. But a rule which operates to deny one all legal redress, which has the effect of outlawry, cannot be regarded as a mere rule of procedure; and when we come to trace back the origin of the rule it seems to be but an incident to the status of a heretic or an apostate. We are told by Blackstone that heresy and apostacy were common-law offenses. Speaking of apostacy, he says: "The belief in a future state, of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends, and will finally compensate every action in human life, (all which are clearly revealed in the doctrines and forcibly inculcated by the precepts of our Saviour Christ), these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him, and the party attesting; all moral evidence, therefore, all confidence in human veracity, must be weakened by apostacy, and overthrown by total infidelity. Wherefore all affronts to Christianity, or endeavors to depreciate its efficacy, in those who have once professed it, are highly deserving of censure. But yet, the loss of life is a heavier penalty than the offense, taken in a civil light deserves: * * * * * This punishment, therefore, has long ago become obsolete, and the offense of apostacy was for a long time the object only of the ecclesiastical courts. But about the close of the last century, the civil liberties to which we were then re

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stored, being used as a cloak of maliciousness and the most horrid doctrines subversive of all religion being publically avowed, both in discourse and writings, it was thought necessary again for the civil power to interpose, by not ad

(4, 4 B. Com. 43, 46, 47.

mitting those miscreants to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 and 10, Wm. III, c. 32, that if any person educated in or having made profession of the Christian religion, shall, by writing, printing, teaching or advised speaking, deny the Christian religion to be true, or the holy scriptures to be of divine authority, he shall upon the first offense, be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and shall suffer three years' imprisonment without bail." These penalties were made applicable to Unitarians by the same statute. Such, then, was the law of England at the time of the recognition of American Independence. Such was the common law of the various states at the time when they declared their independence."

No one could pretend that the provisions of the federal constitution, which we have referred to, viz, the First, Fifth and Fourteenth Amendments, are not in spirit, wholly inconsistent with the common law of the colonies, as we have quoted it, upon the subjects of heresy and apostacy. The common law provisions (statutory provisions of England) would have been wholly void if enacted by Congress after the adoption of the Constitution. Nor can we doubt that if such provisions had existed as part of the common law of the nation they would have been annulled by the adoption

(5) This statute seems to have continued in full force until the enactment of 53 Geo. III, c. 160; by which it was repealed so far as it affected Unitarians. Note 4 Bl. Com., p. 50. by Cooley.

(6) It is generally said that our ancestors brought the common law with them when settling in America, and this usually is regarded as meaning the common law as modified by statute. Many of the states have expressly adopted the common law of England as modified by English statutes up to a certain date. Other states have expressly repealed all English statutes. See on this subject cases collected in note to McKennon v. Winn, 22 L. R. A. 501. It will be seen that the effect of express adoption or express repeal is not construed uniformly by the various states. This is owing partly to the fact that the newer states were never English colonies.

of the Constitution. for, of what avail would it be to forbid Congress to make laws prohibiting the free exercise of religion; to enjoin the equal enforcement of the laws, and respect for life, liberty and property, if laws which already grossly violated these constitutional provisions were permitted to stand as part of the common law? And if a law of the United States outlawing a man for denying the truth of the Christian religion would be held void by the federal courts, it is equally clear that under the Fourteenth Amendment, a state law having that effect would be held void. There is now, of course, no attempt made to enforce the complete outlawry against atheists, which the law permitted at the time of the revolution. The attempt is confined to that partial outlawry which is perpetuated under the cloak of a rule of evidence. This partial outlawry is none the less an infringement of a substantive right; it is none the less an unjust discrimination against a class of persons because imposed incidentally, and it is difficult to understand why it has escaped the ban of constitutional prohibition.

great philosopher, writing on Liberty, more than fifty years ago called attention to a case where a foreigners was denied redress against a thief in a London police court because of so-called atheism. But it was reserved for the Supreme Court of an American state to apply this rule against a child prosecuting for the crime of rape. In the year 1897, the Supreme Court of Louisiana set aside a sentence based on a verdict of guilty rendered by twelve men because the trial judge permitted a girl who had no knowledge of God, had "never heard of the devil or the bad man, or what would become of her if she told a lie" to testify against the man whom it was claimed had raped her. This child was only seven years of age, and was a mulattress. But how many of the most enlightened women in the state 'would, if interrogated, be obliged to admit that they had no knowl

HOOK, C. J.: The plaintiff in error was indicted for depositing in the postoffice of the United States at Girard, Kansas, for mailing non-mailable matter contrary to the act of September 26, 1888 (25 Stat. 496). Among other things the act prohibits the deposit for mailing of all matter, otherwise mailable, upon the envelope or outside cover or wrapper of which is written, printed or otherwise impressed any language of a scurrilous, defamatory or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another. The envelope described in the indictment was properly stamped and addressed to another, but on its face there was printed in large red characters the following: "$1,000 Reward will be paid to any person who kidnaps exGov. Taylor and returns him to Kentucky authorities." The indictment also charged that the words so printed were of a scurrilous, defamatory and threatening character and were calculated and obviously intended to reflect injuriously upon the character and conduct of William. S. Taylor, a former governor of the state of Kentucky. There was a verdict of guilty as charged, the sentence followed.

When the case arose in this court the accused appeared in his own behalf, dispensed with counsel who had filed a brief, asserted his right to use the mails in the way described in the indictment, and said the only question he desired considered was whether the printed indorsement on the envelope could make

his conduct a public offense. But aside from this concession and examination of the record and briefs, discloses no other question that requires consideration. The other objections to the indictment urged in the brief are, we think, without merit. What purports to be a bill of exceptions in the record is not authenticated by the certificate of the trial judge, and the proceedings at the trial are, therefore, not open to review.

There is no substantial question of liberty or freedom of speech involved in this case. The unrestricted use of the mails is not one of the fundamental rights guaranteed by the constitution. (Public Clearing House v. Coyne, 194 U. S. 497.) No one has a natural or constitutional right to send what he pleases through the mails or to write anything he pleases upon the exterior cover of that which would otherwise be mailable. The power of congress extends to the regulation of the entire postal system of the country. It may prescribe what can be carried in the mails and what shall be excluded. It may in its wisdom confine the use of the mails to sealed letters, excluding everything else, or it may extend it to papers, periodicals, and books and to large packages of merchandise as in the parcel post systems of other countries. It may even prescribe the size, shape, weight and character of contents of every mailable packet and limit the perscription to the bare name and address of the person for whom intended; and it may also declare a violation of its regulations a public offense and fix the punishment therefor. Its power over the particular subject is almost without limit except as respects unreasonable searches and seizures and the duty to treat all alike under the same circumstances and conditions. With this comprehensive control over the subject which congress undoubtedly possesses it is idle to say the liberty of the citizen and his freedom of speech in the proper sense of those terms are denied or abridged by a statute forbidding the deposit in the mails of anything upon the exposed surface of which appears language scurrilous, defamatory or threatening or calculated and obviously intended to reflect injuriously upon the character or conduct of others. Liberty and freedom of speech under the constitution do not mean the unrestrained right to do and say what one pleases at all times and under all circumstances, and certainly they do not mean that contrary to the will of congress one may make of the postoffice establishment of the United States an agency for the publication of his views of the character and conduct of others, as distinguished from the carriage of the mails. The very idea of government implies some imposi

tion of restraint in the interest of the general welfare, peace and good order. The statute under consideration is a part of a body of legislation which is being gradually enlarged and which is designed to exclude from the mails that which tends to debauch the morals of the people or is contrived to despoil them of their property or is an apparent, visible attack upon their good names. The competency of congress is beyond question and the courts have uniformly upheld the legislation and applied it in the light of its evident purpose.

The verdict of the jury confirms the averment in the indictment that the accused deposited the envelope in the postoffice or caused it to be done, which, legally is the same thing, and that the printed endorsement on the face of the envelope was of the character charged and referred to William S. Taylor, a former governor of Kentucky. Congress having ample power to enact the statute the only question remaining is whether the indorsement described in the indictment could at a matter of law be within its prohibitions. It has been frequently held that the statute covers mail matter from creditors and collection agencies addressed to debtors and bearing externally visible charges or imputations of habitual refusal to pay just debts, threats of suit, etc., not alone because of a threatening character, but because calculated and obviously intended to reflect injuriously upon the character and conduct of others (United States v. Davis, 38 Fed. 326; United States v. Doyle, 40 Fed. 664; United States v. Brown, 43 Fed. 135; United States v. Simmons, 61 Fed. 640: United States v. Smith, 69 Fed. 971; United States v. Dodge, 70 Fed. 235; United States v. Burnell, 75 Fed. 825.) Aside from the question whether the language employed by the accused is scurrilous, defamatory or threatening it was clearly calculated and obviously intended to reflect injuriously on the character and conduct of the person named. It was an offer of reward in prominent characters for the kidnaping and return of Mr. Taylor to the The Kentucky authorities. common understanding of men has its place in law as in the other affairs of life and according to it the accused plainly asserted that Mr. Taylor was charged with crime and was a fugitive from the justice of the state of Kentucky. It needs no discussion to show that such a charge is calculated to reflect injuriouslý upon one's character and conduct. And as a prosecution under the statute does not proceed as one for libel it is immaterial whether the objectionable language be true or false or whether the accused was actuated by public spirit or private malice. The exterior surface of mail mat